Centro,

STATE OF CALIFORNIA

AGRICULTURAL LABOR RELATIONS BOARD

BROTHERS 1 INC. ,

Respondent,

and

UNITED FARM WORKERS OF AMERICA, AFL-CIO,

Charging Party.

Case No. 79-CE-110-EC 79-CE-240-EC 79-CE-246-EC

8 ALRB No. 1

DECISION AND ORDER

On July 8, 1980, Administrative Law Officer (ALO) Stuart A.

Wein issued the attached Decision in this proceeding. Thereafter,

Respondent and Charging Party, the United Farm Workers of America,

AFL-CIO (UFW), each timely filed exceptions and a supporting brief.

The General Counsel also filed exceptionsl/to the ALO's Decision but

not in a timely fashion. Respondent opposes the acceptance of the

General Counsel's untimely exceptions based on the absence of

extraordinary circumstances justifying the late filing. We accept

General Counsel's tardy exceptions for Respondent has not shown that

it was prejudiced by the late filing. Sam Andrew's Sons (Aug. 15,

1980) 6 ALRB No. 44.

Pursuant to the provisions of Labor Code section 1146~/of

the Agricultural Labor Relations Act (Act), the Agricultural Labor

!/General Counsel's motion to consolidate on appeal this matter with Vessey and Company, Inc. (Dec. 15, 1981) 7 ALRB No. 44 and Joe Maggio, et al., 79-CE-186 et seq., is hereby denied.

~/All code references will be to the California Labor Code unless otherwise stated.

Relations Board or Board) has de ted i author th

matte to th r panel

The Board has cons record and the ALO' Decision

light of the exceptions and brie and has decided to affirm the

rulings, findings, and conclusions of the ALO only to the extent

consistent herewith, and to adopt his recommended order as mod ied

herein.

In our Decision in Admiral Packing, et al. (Dec. 14, 1981)

7 ALRB No. 43, we concluded that as of February 21, 1979,!/the

economic strike at Respondent's operation was converted to an

unfair-labor-practice strike. That conclusion renders moot much of

the ALO's analysis herein and a substantial number of the UFW's and

Respondent's exceptions. Therefore, the first question presented by

the consolidated complaint herein is whether, on December 4,

Respondent's employees tendered an unconditional offer to end their

work stoppage and to return to work.

Under well-settled principles of labor law, and applicable

precedents of the National Labor Relations Act, 28 u.s.c. section

151 et seq., which section 1148 of the ALRA requires us to follow,

when the strike against Respondent was converted to an unfair-labor-

pract str by Respondent s fa th-barga tac i , the

l/Respondent excepts to certain of the ALO's credibility resolutions. To the extent that such resolutions are based upon demeanor, we will not disturb them unless the clear preponderance of the relevant evidence demonstrates that they are incorrect. Adam Dairy dba Rancho Dos Rios (April 26, 1978) 4 ALRB No. 24; Standard Dry Wall Products (1950) 91 NLRB 544 [26 LRRM 1531]. We have reviewed the record and find the ALO's credibility resolutions to be supported by the record as a whole.

!/All dates are 1979 unless otherwise stated.

2. 8 ALRB No. 1

un i i trike and t

the obliga to reinstate them to ir original

posi upon rece ir uncondit t to return to

work. Further, Respondent must, upon receipt such an r,

terminate, if necessa , any temporary replacements who were hired

during the strike, in order to accommodate the returning strikers.

v. NLRB (1956) 350 U.S. 270 [37 LRRM 2587]i

Gorman, Basic Text on Labor Law (1977) p. 341; Admiral Packing, et

supra, 7 ALRB No. 43;

No. 44.

(Dec. 14, 1981) 7 ALRB

On December 4, Respondent received the following

communication from its striking employees:

We the undersigned workers of Colace Company [sic] hereby offer to return to work and declare that we are available for work upon recall.

Nosotros los trabajadores de la Colace Company [sic] ofrecemos devolver al trabajo y declaramos que estamos listos para trabajar cuando nos llaman.

This statement was followed by the signatures of 34

striking employees.ZI The ALO found that this was an unconditional

offer to return to work. Respondent excepts to that finding and

argues that the employees' offer was conditional since it was made

to depend upon the happening of another event, i.e., recall

according to seniority. This argument is rejected as without merit,

for the employees' mention of Respondent's anticipated acceptance

(recall) cannot be considered as constituting the imposition of a

1/The identical communication (except for the name of the company and the names of the workers) was discussed in Vessey & Company, ~~ supra, 7 ALRB No. 44.

8 ALRB No. l 3.

i ion nt.

In effect, Respondent would have us ire a hi

i system terminating labor s where li test

tion would render the of to return to work de tive. We

emphasize that the purposes of the Act would not be furthe by

creating such a burden on workers abandoning a strike caused or

prolonged by their employer's unfair labor practices. The

authorities on which Respondent's argument rests concern a type of

conditional offer that would have involved some concession from the

employer. See, e.g., Swearington Aviation Corp. v. NLRB (5th Cir.

1978) 568 F.2d 458 [97 LRRM 2972]; H & F Binch (2d Cir. 1972) 456

F.2d 357 [79 LRRM 2692]; ~ v. Pecheur Lozenge Co. (2d Cir. 1953)

209 F.2d 393 [33 LRRM 2324]. Here, nothing more than an act of

acceptance by Respondent, recalling the strikers to their former

positions, was called for by the offer to return. Such an act is a

necessary part of the process of rehire and cannot be considered as

a concession demanded of Respondent. An unequivocal offer to return

to work immediately upon recall certainly does not amount to a condi-

tional offer. See, e.g., Retail Store Union v. NLRB (D.C. Cir. 1972)

466 F.2d 380 [80 LRRM 3244]; Colecraft Manufacturing Co. v. NLRB (2d

Cir. 1967) 385 F.2d 998 [66 LRRM 2677]; NLRB v. McQuaide (3d Cir.

1977) 552 F.2d 519 [94 LRRM 2950]; American Cyanmid v. NLRB (7th

Cir. 1979) 592 F.2d 356 [100 LRRM 2640]; Decker Foundary Co. (1978)

~/It goes without saying that the employees' offer required acceptance by Respondent before they could resume their prior jobs. The fact that the employees clearly indicated that they would return to work immediately upon recall actually underscores the unconditional nature of their offer.

8 ALRB No. 1 4.

237 NLRB 6 6 (99 LRRM 1047];

562 [76 LRRM 1231];

[48 LRRM 37] i

7 ALRB No. 44.

Accordingly, when Respondent

(19 0) 18 NLRB

(196 ) 132 NLRB 248

7 ALRB No • 4 3 ;

iled to reinstate the

returning strikers on December 4 and thereafter, it violated section

1153(c) and (a) of the Act. v. NLRB, supra,

350 u.s. 270. Respondent's returning striking employees are

entitled to backpay and recovery of other economic losses for the

period starting December 4, 1979, the date they were unlawfully

denied reinstatement.l/

The ALO found that Pedro Zaragosa joined Respondent's

striking employees on December 15, 1979, and that his offer to

return to work on December 15, 1979, was not an unconditional offer,

but that he made an unconditional offer to return to work by the

filing of the instant charge, 79-CE-240-EC. We affirm the ALO's

conclusion that Zaragosa joined the picketing employees on December

15, 1979 and that his offer to return on that same day was not an

unconditional offer to return to work. However, unlike the ALO, we

find no record evidence to support a finding that Zaragosa has made

an unconditional offer to return to work. Contrary to the finding

l/At a compliance hearing on this matter, Respondent may demonstrate that certain of the striking employees were permanently replaced prior to the date of the conversion of this strike to an unfair-labor-practice strike. Such permanently replaced workers are entitled to reinstatement as of the date of their unconditional offer to return to work (December 4) unless Respondent can also demonstrate that it was necessary to offer permanent employment to the replacements beyond the first harvesting season. Seabreeze Berry Farms (Nov. 16, 1981) 7 ALRB No. 40.

8 ALRB No. 1 5.

the ALO, nothing in the rge filed herein could lead t

to conclude that Zaragosa was unconditional prepared to resume h

dut In light our conclusion that this strike was an unfair-

labor-practice strike, Respondent incurs the obligation to

immediately reinstate Zaragosa only upon receipt of an unconditional

offer to return to work. As we find that the charge did not

constitute such an of r, and that there is no evidence of such an

, we conclude that the General Counsel has not proven a prima

fac case of a violation of section ll53(c) and (a) as to Zaragosa

and we therefore dismiss the allegations of the consolidated

complaint based on the charge in Case No. 79-CE-240-EC.

We affirm the ALO's conclusion that insufficient evidence

was adduced to support the allegation based on alleged comments of

Joe Colace, Jr. on November 2, 1979, to the effect that Respondent

would not bargain in good faith. We therefore dismiss the portion

of the consolidated complaint based on the charge in Case No.

79-CE-110-EC.

ORDER

By authority of Labor Code section 1160.3, the Agricultural

Labor Relations Board hereby orders that Respondent Colace Brothers,

Inc., its officers, agents, successors, and assigns shall

1. Cease and desist from:

a. Failing or refusing to rehire or reinstate, or

otherwise discriminating against, any agricultural employee because

of his or her union activities or sympathies;

2. Take the following affirmative actions which are deemed

necessary to effectuate the purposes of the Act:

8 ALRB No. 1 6.

a. Of r to the follow emp who red

return to work on r 4, 1979, full ia reinstatement

to their r or substant lly equivalent without prejudi

to their seniori ts or other loyement ri ts and privi

and reimburse them for any loss of and other economic losses

they have suffered as a result of Respondent's failure or refusal to

rehire them on and after ~c"'~~r 4, 1979, reimbursement to be made

in accordance with the formula established by the Board in J L

Farms (Aug. 12, 1980) 6 ALRB No. 43, plus interest at a rate of

seven percent per annum:

Refugio Acosta Daniel Aguirre Eufemio Anaya Ruben M. Barrajas Espiridion Bermudez David Cajero Cresenciano Castellon Ignacio Esqueda Guillermo Gomez Maria Luisa Guzman Jose Luis Haro Elias Hernandez Manuel Hernandez Santiago Jauregi Manuel Lizaola Bernardino Lopez Jesus Martinez

Adolfo Melchor Arnolfo Moreno Luis Montero Franc co R. Paz Rual Pacheco Rosario Panela Luciano Perea Ignacio Perez Jesus Ramirez Maria Elena Reyes Josefina B. Rico Juan M. Rivera Merced Romero Manuel Urena Jesus Velasquez Manuel Villalobos Jesus Villegas

b. Preserve and, upon request, make available to the

Board or its agents for examination, photocopying, and otherwise

copying, all personnel records, social security payment records,

time cards, personnel records and reports, and other records

relevant and necessary to a determination, by the Regional Director,

of the backpay period and the amount of backpay due under the terms

of this Order.

c. Sign the Notice to Agricultural Employees attached

7. 8 ALRB No. 1

hereto and,

languages,

pu set

ter ts translat a Boa t into rop ate

suf ic copies each for the

he rei ter.

d. Mail cop the attached Notice, in all

appropriate languages, within 30 days after the date of issuance of

this Order, to all employees employed by Respondent at any time

during the period from December 4, 1979, to the date of issuance of

th Order.

e. Post cop of the attached Notice, in all

appropriate languages, for 60 days in conspicuous places on its

property, the period and places of posting to be determined by the

Regional Director, and exercise due care to replace any copy or

copies of the Notice which may be altered, defaced, covered, or

removed.

f. Arrange for a representative of Respondent or a

Board agent to distribute and read the attached Notice, in all

appropriate languages, to all of its agricultural employees on

company time and property, at time(s) and place(s) to be determined

by the Regional Director. Following the reading, the Board agent

shall be given the opportunity, outside the presence of supervisors

and management, to answer any questions the employees may have

concerning the Notice or employees' rights under the Act. The

Regional Director shall determine a reasonable rate of compensation

to be paid by Respondent to all nonhourly wage employees to

compensate them for time lost at this reading and the

question-and-answer period.

g. Notify the Regional Director in writing, within 30

8 ALRB No. 1 8.

r da issuance thi Order, the

to w its terms, and continue

periodical thereafter, at the l Director' request,

until full compliance achieved.

Dated: January 7, 1982

HERBERT A. PERRY, Acting Chairman

ALFRED H. SONG, Member

8 ALRB No. l 9.

MEMBER McCARTHY, dissenting in part:

I would affirm the rulings, findings, and conclusions of

the ALO except as to the reinstatement rights of Pedro Zaragosa. I

agree with the majority that the evidence does not show that

Zaragosa made an unconditional offer to return to work. I also

agree with both the ALO and the majority that the evidence does not

support the allegation that Joe Colace, Jr. stated that Respondent

would never sign a contract with the United Farm ~vorkers.

I strongly disagree with the majority as to the nature of

the strike and Respondent's obligations to the returning strikers.

The economic strike here is the same strike as that involved in

Admiral Packing {Dec. 14, 1981) 7 ALRB No. 43. For the reasons set

forth at pages 117 and 118 of my Dissent in Admiral Packing, I agree

with the ALO's conclusion that the strike in question was not

converted to an unfair-labor-practice strike. For the reasons given

in my Dissent in Seabreeze Berry Farms (Nov. 16, 1981) 7 ALRB No. 40,

I agree with the ALO's conclusion that the returning economic

8 ALRB No. 1 10.

s rs who were permanen rep

only as vacancies occur in

il its initial obl

by not hiring any

entit

t 's work Re

re tatement

to returning c strikers

ter December 4, 1979, the date on

which the employees in question made their unconditional of r to

return to work.

I would not accept the General Counsel's exceptions as they

were four days late and the regulations do not set forth any grounds

upon which such late filing may be excused. Moreover, one extension

of time had already been granted to the General Counsel for the

filing of its exceptions.

I believe the Board should have dismissed this complaint in

its entirety.

Dated: January 7, 1982

JOHN P. McCARTHY, l-1ember

11. 8 ALRB No. 1

that were filed Centro , ral of the icultu

that we had ies had an

that we d viola

Relat issued a complaint which al violated law. After a hearing at which 1

i to present evidence, the Board found by re to re tate unfair- t s rs who to return to work on December 4, 1979.

The Agricultural Labor Relations Board has told us to send out and post th Notice. We will do what the Board has ordered us to do. We also want to tell you that the Agricultural Labor Relations Act is a law that gives you and all other farmworkers in California rights:

1. To organize yourselves; 2. To form, join, or help unions; 3. To vote in a secret ballot election to decide

whether you want a union to represent you; 4. To bargain with your employer about your wages and

working conditions through a union chosen by a majority of the employees and certified by the Board;

5. To act together with other workers to help and protect one another; and

6. To decide not to do any of these things.

Because th true, we promise that:

WE WILL NOT do anything in the future that forces you to do, or stops you from doing, any of the things listed above.

Especially:

WE WILL NOT fail or refuse to rehire or reinstate, or otherwise discriminate against any employee in regard to his or her employment because he or she has joined or supported the UFW or any other labor organization.

WE WILL offer to reinstate all employees, then on strike, who offered to return to work on December 4, 1979, into their previous jobs or to substantially equivalent jobs, without loss of seniority or other rightE or privileges, and we will reimburse them for any loss of pay and other economic losses they incurred because we discharged or failed to hire or rehire them, plus interest at seven percent per annum.

Dated: COLACE BROTHERS, INC.

By: (Representat1ve) (Tltle)

If you have any questions about your rights as farrnworkers or about this Notice, you may contact any office of the Agricultural Labor Relations Board. One office is located at 319 Waterman Avenue, El Centro, California. The telephone number is (714) 353-2130.

DO NOT REMOVE OR MUTILATE.

8 ALRB No. 1 12.

CASE Brothers, Inc. 8 ALRB No. 1

Nos. 7 24

In January 1979, Respondent's employees began str ing Respondent's lettuce harvesting operations. On December 4, 1979, 34 of the striking employees to return to work "upon recall." Respondent viewed the offer as conditional and also informed the strikers that they had been permanently replaced. The ALO concluded, based ly on the record him, that the strike was an economic strike and that 34 employees had made an unconditional offer to return to work. The ALO further concluded that Respondent had permanently replaced the striking employees, therefore finding that by of ring to place the returning strikers on a rehire list, Respondent had fulfilled its obligations under the Act.

On December 15, 1979, Pedro Zaragosa left his worksite with Respondent and traveled to an area where Respondent's striking employees were congregated. Zaragosa returned later that day to his worksite and was denied employment. Zaragosa offered to return to work if Respondent would guarantee him protection from retaliation from the strikers. The ALO concluded that Zaragosa had joined the strike and had not tendered an unconditional offer to return to work. However, the ALO further concluded that by filing a charge, Zaragosa indicated his unconditional offer to return to work and the ALO ordered that Zaragosa be placed at the bottom of the rehire list.

Certain of Respondent's employees charged that Joe Colace, Jr., had stated to them that he would never sign a contract with the UFW. Faced with Colace's denial of the statement and the circumstances under which the statement was alleged to have been made, the ALO concluded that the General Counsel had not supported the charge with sufficient evidence. The ALO recommended that the entire consolidated complaint be dismissed.

BOARD DECISION

The Board, citing Admiral Packing Company, et al. (Dec. 14, 1981) 7 ALRB No. 43, and Seabreeze Berry Farms (Nov. 16, 1981) 7 ALRB No. 40, noted that as the strikers had become unfair-labor­practice strikers on February 21, 1979, they had an absolute right to reinstatement. The Board therefore found it unnecessary to consider the rights of economic strikers on this record. The Board affirmed the ALO's finding that the strikers offer to return was unconditional and found that Respondent violated section 1153(c) and (a) of the Act by not immediately offering reinstatement to the

their The Board the had joined the str but was

that he had tendered an unconditional there ordered the dismissal this ion

Board i the ALO's conclusion as to and directed the dismissal this

int. The Board otherwise ordered reinstatement other usual remedial provisions as to the

DISSENT

Member McCarthy, citing to his Dissents in Admiral Packing, et a!. (Dec. 14, 1981) 7 ALRB No. 43, and Seabreeze Berry Farms (Nov. 16, 1981) 7 ALRB No. 40., would have concluded in conformity with the ALO herein and directed the dismissal of the complaint. McCarthy joined the Majority as to Zaragosa and the alleged Colace statement; however, he dissented from the Majority's Decision to accept late exceptions from the General Counsel. He would have denied the exceptions for the General Counsel had not established any extraordinary circumstances justifying the late filings.

* * * This Case Summary is furnished for information only and is not an official statement of the case, or of the ALRB.

* * *

8 ALRB No. 1

1

2

3

4 COLACE BROTHERS, INC . ,

CAL

BOARD

5 I Respondent,

) ) Case Nos. 79 110-

6 VS.

7 UNITED FARM WORKERS OF AHERICA, AFL-CIO,

8

9

10

Charging Party.

11 Ricardo Ornelas 1685 E Street, Suites 101 and 102

12 Fresno, California for the General Counsel

13 Thomas A. Nassif, Esq.

14 Gray, Cary, Ames & Frye Imperial County Office

15 444 South Eighth Street El Centro, California

16 for the Respondent

17 Chris A. Schneider, Stephen Matchett,

18 P. 0. Box 1940 Calexico, California

19 for the Charging Party

)

)

)

)

) )

20

21

22

DECISION

STATEMENT OF THE CASE

79 -240-EC 79-CE-246-

23 STUART A. WEIN, Administrative Law Officer: This case was

24 heard by me on April 8, 18, 19, May 1, and 2, 1980, in El Centro,

25 California.

26 Two Complaints -- one dated January 31, 1980, and the other

-1-

1 11, 1980, are on s by i

2 Workers Amer IO ter ''UFW'' or "Union"). :

3 The were duly served on the Respondent CO LACE BROTHERS,

4 INC., on November 6, 1979, December 22, 1979, and December 31,

5 1979. The cases were consolidated pursuant to Section 20244 of

6 tural Labor Relations Board tions by Order of the

7 eneral Counsel dated March 11, 1980.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26'

The Complaints and Amendment thereto1 allege that Respondent

violations of the Agricultural Labor Relations

(hereinafter referred to as the "Act").

All parties were represented at the hearing and were given a

opportunity to participate in the proceedings. The General

the Respondent filed briefs after the close of the

Based on the entire record, including my observations of the

emeanor of the witnesses, and after consideration of the argument

nd briefs submitted by the parties, I make the following:

FINDINGS

I. Jurisdiction

Respondent, COLACE BROTHERS, INC. is a corporation engaged

n agricultural operations -- specifically the growing and

1The first Complaint embodies charges Nos. 79-CE-110-EC and 79-CE-246-EC (the alleged threat of November 2, 1979 and the failure to re-hire the 34 workers. It is dated January 31, 1980. The second Complaint embodies charge No. 79-CE-240-EC (the failure to reinstate Pedro Zaragoza) and is dated March 11, 1980. Pursuant to 8 California Administrative Code Section 20222 (1978) General Counsel formally amended the consolidated Complaints on 7 May 1980 by inserting the names of the 34 workers who petitioned to return to work.

-2-

1

2

3

4

5

6

of tuce, cantaloupes, and carrots

, as was ted

find that Respondent is an agricultural

the meaning of Section 1140.4(c) of the Act.

find that the UFW is a labor organization within the

of tion 1140.4(f) of the Act, as was admitted by

7 Respondent.

8 I also find that the charges in all three cases ("110", "240"

9 and "246") were properly filed and served on the Respondent.

10 While there is some question about the service of the "246" charge

11 I find that General Counsel's Exhibit 8 sufficiently corroborates

12 the Even though not affixed to the charge itself

13 (General Counsel's Exhibit l(C)), I note that the date of the proo

14 of service -- 31 December 1979 -- corresponds to the filing date

15 of the "246" charge. The other two charges were filed on November

16 6, 1979 (charge "110") and December 22, 1979 (charge "240"). The

17 only proof of service on file is affixed to the "240" charge and

18 is dated 22 December 1979. Since the adequacy of the service of

19 the "110" charge has not been challenged, I infer that General I

20 jcounsel's Exhibit 8 refers to the "246" charge, and consequently

21 eject Respondent's contention that the "246" charge should be

22 dismissed for lack of jurisdiction. See ALRB Regulations Sections

23 20202, 20206, and 20430.

24 II. The Alleged Unfair Labor Practices

25 The General Counsel's Complaints and subsequent Amendment

26 harge that Respondent violated the Act in three instances:

-3-

1\

I· I I I I

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

(1) On or about 2, 1979, Joe Co

workers by saying he would never s a contract wi UFW,

thus violating Sections1153(a) and (e) of the Act.

(2) On or about December 14, 1979, Respondent violat

Sections 1153(a) and (c) of the Act by failing to any of

34 named workers who had been on strike prior to tuce harvest

operations.

(3) On or about December 15, 1979, Respondent violated

Sections 1153(a) and (c) of the Act by failing to reinstate

Pedro Zaragoza to the first available job in the lettuce harvest,

because tne latter had joined a picket line on the Respondent's

property.

The Respondent denies that it violated the Act in any

respect. Particularly, Respondent contends that it offered to and

did in fact rehire some of the 34 workers seeking reinstatement

as work became available during the lettuce harvest operation.

Mr. Zaragoza was allegedly not reinstated because of his

apparent return to the picket line and Respondent's obligation

to first rehire from the list of 34 employees who formally

sought reinstatement on or about December 4, 1979.

At the close of General Counsel's case, Respondent moved for

dismissal of all three charges on the ground that General Counsel

had failed to produce sufficient evidence to meet its burden of

proof. Said motions were denied. All three cases will be

discussed, infra.

I II II

-4-

II II II If

II 1 I,

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

L

County ranches which were the s the al

labor In 1979-80, approximately 392 acres of tuce

were harves , and 500 acres of cantaloupes; some 150 acres of

carrots were o grown. and cantaloupes were the only

two crops that the Respondent harvested, packed and sold dur

the relevant period, and served as the primary source of

Respondent's income.

Lettuce the major crop of the winter season which is

harvested usually from the first week in December to mid-March

but will vary according to the weather. In 1979, the lettuce

harvest commenced on December 14. It was preceded by ground

preparation work (tractor operations, pre-irrigation), planting­

germinating, and then thinning and irrigation, which would

normally run from August to early December.

During the peak lettuce harvest season, some 55-60 workers

would be hired to harvest, pack, and ship the crop out to market­

all three of which processes would preferably be completed in

one day for a particular yield because of the perishable nature

of the crop. Accordingly, the lettuce is planted in approximat

35-acre blocks which would take some five to nine days to

The planting is staggered so that the harvest will not be

"bunched up" all at the same time. Thus, the harvest is spread

over the December - March period with various numbers of workers

required at any one time. In 1979, the first 35 acres planted

-5-

1 was t ld"

2 there was no tremendous need or pressure a work

3 at the early stages of the 1979-80 harvest.

4 Lettuce is harvested by "trios" -- groups of -- who cut

5 the lettuce in the field and place it in cartons. These workers

6 are called "cutters" and "packers 11• cartons of lettuce are

7

8

9

10

11

12

? then stapled by a "closer" and placed on a truck by a "loader" .... One or more "floaters" would also move from trio to trio to

assist in the cutting and packing when the labor force for a

particular day was not evenly divisible by groups of three. (R.T.

Vol. III, p. 28, 11. 15-28; p. 54, 11. 4-7)

Respondent had been under contract with the UFW during the

13 period June, 1976 through January 15, 1979. On 26 January, 1979,

14 all of Respondent's agricultural employees went out on strike,

15 sanctioned by the Union. New employees were hired in January 197

16

17

18

19

20

21

22

23

24

25

26

to complete the season's lettuce harvest, but there was

tremendous fluctuation in the availability of workers during the

'k . d 3 str~ e per~o .

In mid-September 1979, Respondent sent recall notices to many

2"Stitchers"and "folders" also work on the truck which brings the cartons out to the field.

3Respondent contends that it knew that only a "small percentage" of the previously hired workers would be returning for the 1979-80 harvest. (R.T., Vol. III, p. 32, 11. 21-24). Indeed, Respondent had finished out the 1978-79 season with only five to six trios. (R.T., Vol. III, p. 101, 11. 16-21). One of these trios would return for the 1979-80 season. (R.T., Vol. III, p. 102, 11. 7-10)

II I I

-6-

I! jl

,!

1 ,, I

2 I 3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

s 11

upcoming season, but a

The labor occurred on November 2,

1979, December 14, 1979, and 15, 1979 invo

actions by Joe Colace, Jr. -~ son of one Respondent's

co-owners (Joe Colace) - and Respondent's and "head"

supervisor. and

will be discussed for each allegation in s im.

IV~. November 2, 1979, Threat of Joe Colace, Jr. Not to

Negotiate a Contract With the UFW.

A. Facts:

Jesus Villegas worked for Respondent from January 1977 throug~

January 26, 1979, in the cutting and packing of lettuce and I

I

picking of melons. He was a member of the UFW and had been

selected as a delegate from the lettuce crew for the UFW Ranch

Mr. Villegas jointd

the other workers in the strike of January 26, 1979, and served

Committee at Colace Brothers in December 1978.

as the strike coordinator for the Colace Brothers employees.

Mr. Villegas recalled overhearing Joe Colace, Jr. making

certain remarks about negotiations with the UFW. Some time in

early November 1979, at approximately 7:30a.m. to 8:30 a.m.,

Mr. Villegas was speaking with Maria Ramirez along Heber Road

adjacent to one of Respondent's fields. Joe Colace, Jr. was some

30 to 50 feet away from Hr. Villegas speaking with pickets who

were on the road along the edge of Respondent's fields. Workers

were also in the vicinity, picking lettuce toward the end of the

-7-

1 rows, to turn and comp another ' s". Mr.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

own words in English, he recalled Joe Colace, Jr. to

have told the strikers "Well, I never --never cont:r:act with

Union". (R.T., Vol. I, p. 35, 11. 14-20; p. 45, 11. 19-21.)

remarks were alleged to have been in a loud vo , in the

ence some 15-20 p ts and workers all of whom were in

hearing range. When Mr. Villegas heard these remarks, he moved

toward the pickets and approached Joe Colace,Jr. Mr. Vill

and Mr. Colace, Jr. did not exchange comments, and Mr. Colace,

Jr. was not overheard to say anything further.

For Respondent, Joe Colace, Jr. specifically denied ever

having made a statement to either workers or pickets that he

would not sign or negotiate a contract with the UFW. (R T.,

Volume III, p. 75, 11. 12-38); p. 76, 11. 1-12). Mr. Colace, Jr. s

version of the early November episode related an exchange between

himself and striker Daniel Aguirre, a former Colace Brothers'

employee. On that particular day, Mr. Colace, Jr. was

supervising the thinning on Field Dahlia 7b, on Van Der Poel

Road. Approximately 35 pickets were out that day. There was

some tension as a few former seniority workers who had returned

to work were in the field that day -- particularly Juan Marcial,

Carmen Martinez, Alfonzo Lopez, and one worker nicknamed "Chino".

Early that morning a portable toilet which was at the end of

Respondent's field had been overturned. There was "quite a bit"

of yelling between the workers and the pickets.(R.T., Volume 3,

p. 70, 11. 3-24). Joe Colace, Jr. had brought out a movie camera

-8-

!I

II

il

1

2 II

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

with a sound to some lence",

recall directing certa statements at str Mr.

a long time Colace Bro who was " up to"

Colace. Mr. Colace, Jr. queried Mr. Aguirre as to what r

non-Colace Brothers' pickets had to yell obscenit at worker

Juan Marcial. He told Mr that some of p s had

never worked for Colace Brothers before, and that Juan Marcial

had the right to work if he wanted to. He had

his father and uncle had treated the workers

ted that

ly on previous

Mr

occasions, and one time had voluntarily raised wages to the level

of other companies even though there was no contractual

obligation to do so. Worker Aguirre apparently made no response

to Mr. Colace, Jr.'s commentary. (R.T., Volume 251, p. 120,

11. 1-19). Some of the workers were within 10 to 20 feet of

Joe Colace, Jr. and had passed right by him. They were thus

within hearing distance of his rather direct tone of voice, as

were the nearby pickets.

While none of these events were recorded by Mr. Colace, Jr.'s

camera, tractor foreman Gabriel Leyvas testified that he had

accompanied Mr. Colace, Jr. to the lettuce thinning on November 2

His recollection confirmed Mr. Colace, Jr.'s version of the event

of the day, and he further denied overhearing any remarks from

Joe Colace, Jr. to the effect that Respondent would not sign or

negotiate a contract with the UFW. (R.T., Vol. III, p. 82, 11.

7-12; p. 91, 11. 14-19).

I II I I

-9-

B. 1

21 31

1153(a) of the Act prohib an tural

with,restraining or coercing agricul

4 employees in the their 1152 s.

5 of any views, arguments, or opinions which contain a threat of

6 reprisal or (or promise of benefit) are not considered

s

7 protected free speech under §1155 of the Act. Thus, an employer

8 cannot threaten employees with discharge or layo for

9 participating in organizational activity. M. Caratan, Inc~, 5

10 ALRB No. 16 (1979); Hemet Wholesale, 3 ALRB No. 47 (1979);

11 National Tape Corporation, 187 NLRB No. 41, 76 LRRM 1008 (1970).

12 An implication that the employer would not negotiate with the

13 union to reach a mutually acceptable collective bargaining

14 agreement is similarly a threat prohibited by the Act. Jasmine

15 Vineyards, Inc., 3 ALRB No. 74 (1977).

16 The test is whether the statement amounts to a threat of

17 force or reprisal within the control of Respondent. Bonita

18 Packing Co., 3 ALRB No. 27 (1977). It is an objective standard

to be applied, rather than the employee's subjective reaction. 19

20

21

22

23

24

25

Jack Brothers and McBurney, Inc., 4 ALRB No. 18 (1978). [

In the instant case, the statement by Joe Colace, Jr. that I

the Respondent (would) "never negotiate a contract with the j 'UFW'",uttered in a loud and direct manner within hearing distanc

of workers and strikers might well constitute unlawful coercion I

as well as unlawful refusal to bargain in violation of Section 'I

I

26 1153(e). The threat of reprisal is manifest as Joe Colace, Jr.--

-10-

II il I i

I ,,

1 son

2

one o

of Co

3 Company spokesman with

's co-owners, If

- would a

to the ongo

4 While those on the picket 1 would be "warned" that the current ! '

5 cris could continue indefinitely, the workers in the f ld would

6 receive a mes of the disastrous cons ing them

7 should they at some time choose to honor the strike.

8 However, I find that General Counsel has failed to prove by

9 preponderance of the evidence that Joe Colace, Jr. did in fact

10 the November 2, 1979 statement attributed to him by witness

11 Jesus Villegas. I reach this conclusion based on the following

12 considerations:

13 Joe Colace, Jr. specifically denied ever having stated to

14 anyone, at any time, that Respondent would not negotiate with the

15 UFW. Tractor foreman Gabriel Leyvas accompanied Mr. Colace, Jr.

16 on the day in question and did not recall any statement along the

17 lines described by Mr. Villegas. Both Mr. Colace, Jr. and foreman

18 Leyvas did recall a discussion with striker Daniel Aguirre, in

19 which Mr. Colace, Jr. referred to the past fair treatment of the

20 workers by Respondent who had previously been under UFW contract.

21 Witness Villegas, the strike coordinator for Respondent's

22 employees, was straightforward in his testimony, and highly

23 credible. He was particularly precise when reciting the exact

24 words that he had heard Joe Colace, Jr. state. However, he

25 conceded that he was conversing with one Maria Ramirez when he

26 overheard Mr. Colace, Jr.'s remarks. He was some 30 to 50 feet

-11-

1

2

3

4

5

6

Joe Co , Jr. were He

approached Mr. Co no other were

he could not recount the context of statement. No o

witnesses appeared to test for General Counsel -- not Mr.

Ramirez or Mr. Aguirre, or any other of the members of the p t

line. Perhaps not unexpectedly, none of the strikebreakers --

7 those working in the fields on that were to testify either •

8 As suggested in Respondent's brief (P. 34), is equally

9 probable that the remarks overheard by Mr. Villegas could be

lO either threatening or innocuous. Joe Colace, Jr. could have

ll been repudiating all further dealings with the UFW. Alternatively

12 the phrase "no contract with the UF"t-7" might have related to

l3 Respondent's prior fair treatment of the workers even when there

14 was no contractual obligation to do so. Because Mr. Villegas'

15 attention was diverted, because he was at a great distance from

16 the source of the remarks, because neither he n::Jr any other

17 witness could illuminate the context of the remarks, I find that

18 General Counsel has not ll'Et its burden of proving the unfair labor

19 practice. SeeS. Kuramura, Inc., 3 ALRB No. 49 (1977).

20 Where,as here, the only sources of evidence on the issue are

21 equally logical, and in direct conflict, I cannot conclude that

22 alleged threat was actually made. Desert Harvest Company, 5 ALRB

23 t~o. 25 (1979). The Respondent had no prior history of unfair

24 labor practices since the time of its first dealings with the

25 UFW in 1976. Witness Joe Colace, Jr.'s testimony was direct,

26 consistent, and demonstrated no particular anti-UFW bias. \.Jhile

-12-

I I I

r 1 ,I

I i

2 I I

I 3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24 I

25

26

cone to been upset t st

who over a portab

worker Juan Marcial, there on

to conclude that this anger culminated in the articulat

by Jesus Villegas. I therefore recommend that Paragraph 9

Amended Complaint embodying no. 79-CE-110-EC be di ss

v.

A. Facts:

At the hearing, it was stipulated that a petition signed by

34 workers of Colace Brothers was delivered by a UFW paralegal

to Respondent employee (bookkeeper) Virginia Peterson on December

4, 1979. (General Counsel's Exhibit #3). The petition contained

the following statement in English and Spanish: "We the

undersigned workers of Colace Company hereby offer to return to

work and declare that we are available for work upon recall".

Strike coordinator Jesus Villegas circulated the petition in the

field where the picket line had been established and obtained I

all the signatures between December 3 and December 4. Mr. Villeg.s I purpose in collecting signatures for the list was to enable I

strikers to return to work, to demonstrate to the Respondent that

the strikers were acting in "good faith". According to Mr.

Villegas, the offer to return to work was unconditional and was

delivered to the Respondent's employee some ten days before the

start of the lettuce harvest. (R.T., Vol. I, p. 63, 11. 14-17;

p. 60, 1. 4; p. 61, 11. 23-25).

-13-

1 ter Counsel of 4 19 ( 1 Couns 1'

2 Exhib #4), Respondent indicated

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

openings in the lettuce harvest two s.

listed the names of six workers eligible for this t recall

in order of seniority, and set forth the arrangements for

ing to work.

General Counsel alleges that the two-month lapse between the

presentation of the petition and the offer to recall six workers

constituted a discriminatory failure to rehire from the list of

34 workers. Since the harvest did not start until December 14

some ten days after Respondent's receipt of this petition, and

Respondent made no offer to recall any workers on the list until

over one month after the unfair labor practice charge had been

filed and served, Respondent's conduct, it is alleged, was aimed

at punishing the union members who had participated in the strike

Respondent denies any discriminatory motivation with respect

to the handling of the December 4 petition, but rather avers that

the workers on the list were recalled by seniority as openings

became available. Thus, Joe Colace, Jr. testified that the

recruitment process for the 1979-80 lettuce harvest started in

early November. He instructed foreman Jose Holguin to recruit

approximately four trios, foreman Juan Fernandez was asked to

look for approximately six to eight; and foreman Johnny Martinez,

some eight trios. The needs were established by estimation of

the number of employees likely to return from the 1978-79 harvest

26 and consideration of the 1979-80 crop. As in the past, the forem n

-14-

1 were to cutters

2 and packers that were

3 dut of harves Holguin and Juan

4 Fernandez worked with Respondent full- Co , Jr. was I

I able to communicate with them on a basis and had learned

i

5

6

7

8

9

that they both led their "quotas" by November. Johnny j

10

11

12

13

14

15

16

17

Martinez was in Arizona, and spoke to Joe Colace, Jr. by telephon4

about once every other week, and also informed Mr. Colace, Jr.

that he had fulfilled his recruiting responsibilities by late

November, but that his people would not arrive until after the

commencement of the harvest because of a prior commitment in

Arizona. (R.T., Vol. III, p. 40, 11. 11-20).

An approximate date for the commencement of the lettuce

harvest season was given as the day got closer -- some time in

early December. When the December 4 petition was received, there

were no openings in the lettuce harvesting operation for the

1979-80 season, even though the harvest had not actually

18 commenced. Foreman Johnny Martinez was told not to hire anybody

19 after December 4. The other two foremen had already fulfilled

20 their responsibilities and thus were given no further specific

21 instructions in this regard. As new people arrived during the

22 first days of the harvest, Joe Colace, Jr. would check with the

23 foremen to make sure that nobody had been recruited after

24 December 4. In several instances, workers were turned away

25 because they had been hired after December 4. (R.T., Vol. III,

26 p. 49, 11. 5-15).

-15-

II il il 'I II I

1 I

2

3

4

5

6

7

8

9

10

11

12

13

14

151

16

17

18

19

20

21

22

23

e was one of the t

1979-80 season, and because was a st influx of "new-:

" as workers arrived during the early days of the harvest,

it was apparent that the employment needs had been fulfilled

the first weeks of the harvest. As the crop increased, as some

workers 1 for one reason or another, openings arose and

were filled in the manner stated in Counsel's February 4, 1980

letter.

The pertinent time periods and recruitment needs were

confirmed by Foremen Johnny Martinez and Juan Fernandez. Mr.

Fernandez testified that he went to the Calexico-Mexicali border

approximately four times in mid-November to seek workers and

had secured his "quota" by the end of November. Many he knew

from previous work experience with other companies, although

he was unable to identify them by name, even after reviewing

Respondent's payroll sheets (General Counsel's Exhibits #6A, 6B,

6C, 6D, 6E, 6F, 6G, 6H, 6I, 6J, 6K). Mr. Martinez and his crew

had worked with Colace Brothers in February and March of 1979

and were told to return for the next season if they wished. He

returned for the thinning in October, and was told in the latter

part of that month to bring 8 or 9 trios to start work during the

harvest. By telephone conversation in mid-November, Foreman

Martinez confirmed with Joe Colace, Jr. that he had hired

24 approximately 12 to 13 trios (to insure that a sufficient number

25 would show up), and that they would be available sometime in the I

26 \ middle of December. Foreman Martinez had told his people in

I,

11 -16-

j,

lj

II

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

er would at a er

had completed the November job Arizona. The Colace Bro s'

work would be "permanent", that is, would t the ent t

season. Approximately 8 trios showed up commencing on or about

20 December. While Foreman Martinez Colace Brothers by

end of December to fulfill a commitment elsewhere, with one or

two exceptions his "recruitees" stayed on with Respondent for

the duration of the harvest. (R.T., Vol. IV, p. 80-a, 11. 25-27).

B. Analysis and Conclusions:

Section 1153(c) of the Act prohibits discrimination in the

hiring or tenure of employment or with respect to any term or

condition of employment, "to encourage or discourage membership

in any labor organization." The General Counsel has the burden

of establishing the elements which go to prove the discriminatory

nature of the refusal or failure to rehire. See Maggio Tostado,

3 ALRB No. 33 (1977), citing NLRB v Winter Garden Citrus Products

Co-Operative, 260 F.2d 193 (5th Cir. 1958). The test is whether

the evidence, which in many instances is largely circumstantial

establishes by s preponderance that employees were not

"recalled" because of their views, activities, or support for the

union. Cf. Sunnyside Nurseries, Inc., 3 ALRB No. 42 (1977), 93

Cal. App. 3d 922 (hg den). Among the factors to weigh in

determining General Counsel's prima facie case are the extent of

the employer's knowledge of union activities, the employer's

anti-union animus, and the timing of the alleged unlawful conduct

In the instant case, involving the alleged failure to rehire

-17-

1 known t crit cons is

2 nature s commenc by Respondent's employees on

3 i January 26, 1979. Following NLRB precedent, the strike is an

4 unfair labor practice strike, the strikers are immediately

5 entitled to reinstatement to their former jobs even if the

6 emp has hired permanent replacements. NLRB v.

7 & Telegraph Co., 304 U.S. 333, 2 LRRM 610 (1938). Thus, upon

8 receipt of the December 4, 1979 pet ion signed by 34 employees,

9 Respondent would have been obliged to reinstate all 34 prior to

10 or at the time of the commencement of the lettuce harvest on 14

11 December. It's failure to do so would constitute violations of

12 Sections 1153(a) and (c) of the Act.

13 General Counsel has produced no evidence at the hearing to

14 support its contention that the January 26, 1979 strike was an

15 unfair labor practice strike, but rather argues in its brief,

16 that this issue has been decided adversely against Respondent

17 in Admiral Packing Co., 79-CE-36-EC, et al., (ALO decision of 4

18 March 1980). (General Counsel's Brief, p. 9, footnoe 3). That is

19 under NLRB precedent, an economic strike may be converted into

20 an unfair labor practice strike by acts of the employer, thereby

21 changing the status of the participants to unfair labor practice

22 strikers and entitling them to immeidate reinstatement. NLRB v

Pecheur Lozenge Co., 209 F.2d 393, 33 LRRM 2324 (2nd Cir. 1953), I cert. denied, 347 U.S. 953, 34 LRRM (1954). Thus, where during af

25 economic strike ·an employer refuses to bargain with the employee's

representative, the strike becomes an unfair labor practice strikk.

23

24

26 I

II

II -18-

II 'I II

II II

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

v F. 5

2782 (7th c 1965). In the tant case, however,

referenced ALO decision is presently Board (see

General Couns 's Brief, p. 9, footnote 3). I decline to

judicial notice of this decision, pursuant to ALRB Regulat

tion 20286(a}.

I further do not find factual basis in the record to support

General Counsel's contention that the strikers became unfair

labor practice strikers as soon as one new employee was hired

after the strikers offered to return to work. (See General

Counsel's Brief, pp. 9-10, citing NLRB v

Cir. 1967) 64 2741. While the payroll records do indicate

various "new" workers employed during the first weeks of the

harvest (December 14--December 31), the testimony is uncontrovert d

that all had been hired prior to 4 December 1979. (See

discussion, infra.) Any workers that showed up who had been

hired subsequent to 4 December 1979 were asked to leave. There­

fore, I find that based on the current record, the 1979 strike at

Respondent's ranches was an economic strike, and will apply NLRB

and ALRB precedent applicable to economlc strikes. I

Since the strike activity is to be categorized as an economic!

strike, the employer is generally under an obligation to reinstat

the strikers if vacancies exist. NLRB v Fleetwood Trailer Co.,

Inc., 389 U.S. 375, 66 LRRM 2737 (1967). The NLRB has defined

the employer's obligations and the status of replaced economic

strikers as follows:

-19-

1

2

3

4

5

6

7

str s who tatement at a t 1 d

by permanent lacements· (1) remain emp ; (2) are entitled to full reinstatement upon the of replacements unless they have in the meantime acquired regular and substantial equivalent employment, or the employer can sustain the burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons." Laidlaw Cort., 171 NLRB No. 175, 68 LRRM 1252, 1258 (1968), enforced, 4 4 F.2d 99, 71 LRRM 3054 (7th Cir. 1969), cert. denied, 397 U.S. 920, 73 LRRM 2537 (1970). --

8 There is no real factual dispute on the record that the

9 petition constituted an unconditional offer to return to work

10 from 34 "former" employees of Respondent. The names on the

11 petition referred to Respondent's employees who had been on the

12 picket lines since January 26, 1979. While Respondent argues

13 in its brief (Respondent's Brief, pp. 43-47) that the December 4

14 list was not an "unconditional" offer to return, I find no fac

15 basis for this contention. There was no condition upon

16 reinstatement of all workers (Valley City Furniture Co., 110

17 NLRB 1589 (1954));no condition upon reinstatement of a union

18 adherent (Atlan Daily World, 192 NLRB No. 30 (1971)); nor any

19 condition upon the employer's agreement to acknowledge receipt of

20 offer (Swearingen Aviation Corp. v. NLRB, 568 F.2d 458 (5th Giro

21 1978)). Rather, the testimony of Jesus Villegas was unequivocal

22 that the offer to return to work was made without any conditions

23 attached, and Counsel's efforts to elicit such conditions on

24 cross-exmination proved fruitless. (RoT., Volume I, pp. 60-65.)

25 I The words "upon recall" did not depend upon the occurrence of any

26 event other than the employer's notification of the availability

-20

1

2

0 sit

Unl the situation where the to return to

3 work was conditioned upon acknowledgment that an earlier

5 no prerequisite to their return to work. Since the tuce

6 t was about to commence, it not unlikely that the

7 workers hoped to return to their former harvest jobs; but they I 8 neither "demanded reinstatement" to particular positions, nor 11

9 insisted that all applicants be taken back. NLRB v Anchor Rome Mill ,

10 Inc., 228 F.2d 775 (5th Cir. 1956); American Optical Co., 138 NLRt

11 No. 85 (1962), supra.

12 Any"confusion" Joe Colace, Jr. may have had upon receipt of

13 the petition was not evidenced by any subsequent conduct of

14 Respondent. In fact, he testified that upon receipt of the list,

15 it was Respondent's position that he would recall workers in

16 seniority orders "at any time there was an opening". (R. T. , Vol.

17 III, p. 45, 11. 14-23). By February 4, 1980, Respondent through

18 Counsel, advised the UFW that it had openings in the lettuce harvest

19 for two trios. (General Counsel's Exhibit #9). The letter

20 suggested the six employees eligible for this first recall, and

21 instructed them where to report for work. There were no other

22 communications between the parties and/or their representatives

23 between December 4, 1979, and February 4, 1980, and no indicia

24 that the Respondent did not understand the "offer" contained in

25 the December 4 list. I thus find that the December 4, 1979 list

26 constituted a clear and unequivocal, and unconditional offer to

-21-

I

II I' rl

II

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

251 !

261

I II

II

return to named were ent tl to be

re-employed as discus

No. 53 (1980};

F. 2d 1200, 1205 (9th Cir. 1970}.

The sole tual question remaining revolves around whether

or not the lettuce harvest posit led I were permanent

prior to receipt of the December 4 petition.

The test for determining whether a worker has been permanentlj

replaced is whether or not arrangements have been made with the

replacement to fill the position. Superior National Bank & Trust

Co., 246 NLRB No. 123, 102 LRRM 1685 (1979). The principle

enunciated in H & F Bench Co., v NLRB, 456 F.2d 357 at 362 (2d

Cir. 1972), enforcing 189 NLRB 720 (1977) suggests the standard:

'whether the replacement would have reasonable grounds for

indignation if he were subsequently denied the promised job",

In the instant case, it is irrelevant that the strikers requested

reinstatement before the replacements actually began to work.

It was uncontroverted that commitments had been made by the end I

of November for more than sufficient trios to commence the harvest.

There is no instance in the record of an employee having been I I

hired after 4 December 1979 who was allowed to work the harvest.

The payroll records submitted refer to "new" employees after the

first day of the harvest season, but these references are

consistent with Respondent's witnesses' testimony that not all tht

workers showed up on the very first day (see General Counsel's

Exhibit 6A, 6B, 6C, 6D, 6E, 6F, 6G, 6H, 6I; R.T., Vol. II, pp 10-

-22-

1

2

3

II

I' !

11, R. T. I 1. ) .

z, Ho

lacements would be

4 indignant, - and have reasonable grounds to be so-- if they were

5 subsequently denied work in the lettuce harvest. Mr. Martinez'

6 peop came Arizona with the permanent work with

7 Respondent. Mr. Fernandez obtained commitments from workers near

8 the border, and some contacted him prior to the harvest

9 commencement to ascertain the e first day of work. Nor does

10 the fact that two or three workers later joined Foreman

11 Martinez at Martori Brothers suggest that the harvesters were

hired for anything other than permanent jobs.

I I

12

13

14

General Counsel has contended that Respondent did not

permanently replace the 34 workers until well after receipt of th~

15 petition. Supporting this thesis are the following factors: The

16 petition was received a good ten (10) days prior to the

17 commencement of the harvest. A notice of recall -- relating to

18 only six of the thirty-four employeeS--was not sent out until

some six weeks after the commencement of the 19 February 4, I

20 1

1 harvest, and nearly five weeks after Respondent had been served

21 with unfair labor practice charges for the failure to rehire.

22 Hiring practices were informal, and Respondent could not prove

23 which employees had been hired as of any specific date. Payroll

24 records would demonstrate that "new" employees were consistently

25 arriving onto Respondent's fields for the first ten days of the

26 harvest -- or a good three weeks following receipt of the petitio

-23-

II ij

!I ;I

II I I

1

I 2

3

41

5 I

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 '1'1

I' i

One of crew Johnny would not

wi people until a week er the t

Mr. Martinez, and at least two others would spondent's

employ by the beginning of January because of a prior commitment.

Respondent'· s explanation for the delay in recalling the

known UFW adherents, however, withstands close scrutiny: 1

The testimony of Joe Colace, Jr., and the two foremen John~y Martinez and Juan Fernandez -~ confirm that the recruitment efforJs

I had all but ceased by the end of November. Because of the

uncertainty of the labor force during the pendency of the strike,

the recruitment began as early as October, when Martinez and his

crew were completing the thinning of Respondent's lettuce. Those

who were found to have been hired after December 4 -- only from

Mr. }~rtinez's crew, since the other foremen had been working

steadily with Respondent and thus were more formally monitored

in their hiring practices -- were sent away. Mr. Martinez was

anyone after 4 December. Foremen Holguin and Fernandez had

already fulfilled their "quotas" and thus did not have to be

made aware of the December 4 petition.

The low ••yield" of the first ranch to be harvested plausibly

explains the increase in the numbers of workers after the initial

days of the harvest. Since the commencement date for the lettuce

harvest varied with weather conditions, and neither Respondent

nor the strikers knew exactly when the harvest would start, the

staggered arrival of the work force is understandable.

-24-

1

2

II I I

who

stated that

t test

0 work

3 on December 13. He had not signed the December 4 But Joe

4 Colace, Jr. recalled meeting with Mr.

5 week of December to discuss Mr. Zaragoza's impending work. The

6 also recalled a discussion with Mr. Holguin during this

t

7 time period regarding Pedro's return to the Respondent's fields.

8 Holguin did not testify to corroborate discussion, but the

9 early Zaragoza-Colace Jr. meeting was never refuted, and thus,

10 I am not persuaded that the hiring practices with respect to Mr.

11 Zaragoza undermine Respondent's contentions in this regard.

12 Nor do I find that anti-union motivation constituted the

13 "last straw which broke the camel's back" in causing the two-

14 month delay before recall. See NLRB v Whitfield Pickle Co., 374

15 F. 2d 576, 582, 64 LRRM 2656 (5th Cir. 1967). While there is

16 some question as to why Respondent did not convey its rehiring

17 plans to the UFW prior to February 4, 1980,4 I do not find that

18 this omission constitutes an unfair labor practice. Respondent

19 , had previously "recalled" many striking employees during the

20 August-September thinning season, with little success. The "recal~' 21

22

23

24

25

26

was made when vacancies became appparent. There is no prior !

I

history of unfair labor practices having been committed on

Respondent's farms. Nor is there a pattern or series of events

that gave rise to the instant charges. Where, as here, there

is only a suspicion about Respondent's timing and the partial I

nature of the recall, said suspicion is not sufficient to sustai

-25-

II II ,,

I' 1 I a of 1153(a) and/or ) . Whi

2

3

4

5

6

status of tuce ters

prior to February 4, 1980 -- even only to communicate

personnel had been hired at least for the commencement

of the harvest season -- said omission does not constitute an

1153(a) and/or (c) violation. I therefore recommend that the

7 respective paragraphs of the Complaint be dismissed.

8 I find that although the strikers unconditionally applied

9 for reinstatement, their positions were filled by permanent

10 replacements as of December 4, 1979. Those employees on the list

who have not yet been recalled would, of course, remain eligible

for "recall" as vacancies are available consistent with the

guidelines espoused in Laidlaw Corp., supra, at 103. l

i

11

12

13

14

15

16

17

18

VI. Refusal to Reinstate Pedro Zaragoza as a Lettuce

From December 15, 1979.

Harvestet

A. Facts:

Pedro Zaragoza was told to report to work in the lettuce

harvest on December 13, 1979 when foreman "Holguin" came to his

19 house in Mexicali. He had been a Colace Brothers' employee

20 since 1973, and had worked continuously up until the 1979 strike i 21 in which Mr. Zaragoza had participated. He commenced work cuttin

22 and packing lettuce on December 14 -- the first day of the

23 harvest. He worked a full day on the 14th without incident, but

24

25

26

only some three hours on the next day. Mr. Zaragoza testified tha

he left the field early because he "felt bad". He apparently I gestured to foreman-timekeeper Santiago Torres and "Holguin" that!

-26-

I

II II

II

1 I I

2 I

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

wasn't L blood sure was

ion was somewhat blurred. then j

and went to talk with the peop who were on the p line

adjacent to Respondent's field, allegedly to seek a which

was at Respondent's shop some 10-15 miles away. He stayed with

the pickets approximately one and a half hours, rode to the

"shop" and returned for another hour because the "shop" had been

closed. When he finally was able to reach his car (the "shop"

or yard had been padlocked) late in the afternoon to obtain his

medicine, the other workers were leaving for the day. At that

time -- approximately 6:00p.m., Santiago Torres handed Mr.

za his paycheck, telling him that there would be no more

work for him. Pedro Zaragoza responded that he felt badly but

wanted to return another day. Santiago Torres suggested that Mr.

Zaragoza talk with the general foreman, Bruno Vasquez, to see

he could work the next day. Mr. Vasquez told Mr. Zaragoza that

he couldn't have any more work because he had gone out on the

picket line, despite Pedro Zaragoza's protestations that such a

reaction was unfair because of all the time he had spent working

4The issue is particularly troubling in light of Respondent's apparent suggestion that it had been "misled" by its failure to have received the "246" charge. (See Respondent's Brief, p. 56). Insofar as the February 4, 1980 letter is a response only to the charge filed, rather than to the December 4 petition, Respondent's conduct would be violative of Sections 1153(a) and (c). However, I credit Joe Colace, Jr.'s testimony in this regard to the effect that Respondent -- upon receipt of the December 4 petition -- had determined to "recall" the workers in order of seniority as openings became available (R.T., Vol. III, p. 45, 11. 14-23}.

-27-

1

2 Joe Colace, . test was '

3 because he had walked over the fence, and "apparently" had j o

"

4 the strike. He recalls Pedro za having completed one "pass

5 on the 15th of December, and as the workers approached the end

6 the field, words were exchanged with the nearby pickets. Pedro

7 Zaragoza allegedly stood and talked with the s for some

8 ten minutes and climbed over the fence and stood on the strike

9 line. Joe Colace, Jr. could see Pedro Zaragoza with the strikers

10 for a "good hour", and also observed him playing cards on the

11 engine hood of one of the cars parked next to the picket line.

12 He was replaced by a "floater" -- the odd person of the twenty-

13 two member crew which worked in trios. Timekeeper Santiago

14

15

16

17

18

19

20

21

22

23

24

Torres was ordered to ascertain Mr. Zaragoza's pay and later

instructed Bruno Vasquez that Pedro Zaragoza had been replaced

in the lettuce crew.

Mr. Colace, Jr. had no knowledge that Pedro Zaragoza was ill

that day, nor did Foremen Santiago Torres or Bruno Vasquez. l Nobody had seen any of Mr. Zaragoza's "gestures", and both Foremel

Torres and Vasquez testified that Pedro Zaragoza had told them J

that he stopped working because the strikers were yelling at him l and had threatened to damage his car and burn his home. Supervise

Torres further recalled that Pedro Zaragoza asked if there was a

chance for him to return to work if he could be guaranteed that

25 I his car would not be damaged.

26 I I I I I I

-28-

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

I I I

il

B.

The NLRB to Section 1 (c) of the Act, i

criminat to encourage or discourage union

prohibition "includes discouraging participation in concerted

activit . " NLRB v. Erie Res is ton Corp. , 3 73 U.S. 221, 233, 53

LRRM 2 1 (1963). Concerted activity may be either protected or

unprotected. Generally, protected activit are those pursued

in a peaceful manner by the employees to obtain or pursue the

Section 7 (1152) rights. See Morris Developing Labor Law,

Cumulative Supplement 1971-75, at 57. A peaceful economic strike

is a typical protected activity. (See Russell Sportswear Corp.

97 NLRB 1116, 80 LRRM 1495 (1972)).

Here, Pedro Zaragoza engaged in protected concerted activity

by apparently joining the picket line on December 15. Joe

Colace, Jr. conceded that that was his reason for replacing Mr.

Zaragoza and giving him his final paycheck that afternoon.

Although Mr. Zaragoza denied that he left work to join the picket ,

and averred that the real reason for his abrupt departure was

his illness, 5 he never communicated same to any of Respondent's

5Mr. Zaragoza's testimony with respect to why he left in mid-day contradicted his declaration which was admitted into evidence. (Respondent's Exhibit No. 1). I find, however, that the inconsistencies of Mr. Zaragoza's testimony were attributable more to his sincere desire to maintain the good relationship which he had sustained with Respondent for the past six years, rather than any effort to mislead either myself or the Board. I base this conclusion on my observations of Mr. Zaragoza's demeanor, his testimony, and the thought that he was not motivated by self-interest (a favorable outcome at the hearing) in insisting that his true intent was other than what he had formerly stated under penalty of perjury. Since his subjective intent is in any event irrelevant to the General Counsel's case, I do not find this discrepancy to be critical.

-29-

at least two to p

2 that afternoon, having been ly on s

3 January 26.

4 The difficulty in General Counsel's case, however, 1

5 obligation of the Respondent given the conceded nature of the

6 protected activity. Util ing the identical standard as

7 with respect to the "246" charge, is apparent that Mr.

8 Zaragoza would be entitled to reinstatement only upon departure

9 of the permanent replacements. Since there were no openings

until February 4, 1980, and these were filled from the December

4 petition by seniority, Mr. Zaragoza would not be entitled to

recall until the entire list has been exhausted. Inso as

Respondent's partial recall was appropriate and justi by

I

I

10

11

12

13

14 the valid business consideration that permanent replacement harveJt

151 16

17

18

19

20

21

22

workers had already been recruited, then Mr. Zaragoza would have

replacement rights subsequent to those on the petition.

While it is unclear whether Mr. Zaragoza unconditionally

sought reinstatement on the 15th of December -- foreman Santiago

Torres recalled that Mr. Zaragoza would return only if

Respondent could guarantee that his car would not be damaged and

that his house would not be burned, and General Foreman Bruno

Vasquez could recall no such request -- he formally requested

23 same, through service and filing of charge #79-CE-240-EC, on or

24 about December 22, 1979. I find that he would be and is entitled

25 to recall with Respondent upon the opening of a suitable vacancy·

26 (Laidlaw Corp., supra, at 103 ).Said recall would follow that of

-30-

I

II II

ll h I

1 I

2

3

Wi

4 VII.

4 t

cons ' I d

filed case "240".

5 IT IS ORDERED that all allegations contained in the

6 consol ed Complaints as amended are dismissed.

7

8

9

DATED: July ' 1980.

10

11

12

13

14

15

16

17 I

18

19

20

21

22

23

24

25

26

-31-

STUART A. WEIN Administrative Law Officer